This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In the Matter of the Welfare of: K.M.G.


Filed April 17, 2007


Stoneburner, Judge


Hennepin County District Court

File No. 185805/J10457022


Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant)


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant, a juvenile, challenges his adjudication of delinquency for third-degree criminal sexual conduct, arguing that the district court abused its discretion in evidentiary rulings, the admissible evidence was not sufficient to support the district court’s finding that he committed the offense, and the revocation of his stay of adjudication was not supported by adequate findings and was contrary to the interests of justice.  We affirm.



Appellant K.M.G. had consensual sexual relations with J.T. in the restroom at the Brooklyn Park community center when K.M.G. was 17 and J.T. was 14 years old.  After J.T. began to bleed heavily, J.T.’s sister and two friends, who had come to the community center with her, became alarmed and called 911.  When police officers and an ambulance arrived, the girls told them that J.T. had been raped by an unknown, white, adult male.  J.T. told the same lie to the emergency-room doctor, the sexual-assault nurse, a hospital social worker, and the doctor who performed surgery on her.  Later, J.T. repeated the lie to a police detective, but when the detective informed J.T. that police knew there had not been a rape, J.T. admitted what had actually occurred. 

            A petition was filed, alleging that K.M.G. was delinquent for committing one count of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b) (2002).  Because J.T. had told K.M.G. that she was 16 years old, K.M.G. asserted the defense of mistake of age under Minn. Stat. § 609.344, subd. 1(b). 

            Shortly before trial, the state amended the petition to include a second count of third-degree criminal sexual conduct, based on allegations that K.M.G. continued to have sexual contact with J.T. after he was informed of her age.  The trial was continued to allow K.M.G. to prepare a defense to the new allegations.

            Based on information that K.M.G. has an I.Q. of 69 and learning disabilities that could impair his ability to understand the legal proceedings, the district court granted a Rule 20 competency evaluation.  The Rule 20 evaluator reported that K.M.G. was competent to stand trial but noted that he suffered from depression.

            At trial, J.T. testified that she had sex with K.M.G. several times at his house after the incident at the community center.  K.M.G.’s mother testified that she had encountered J.T. in their home and had made K.M.G. take J.T. home immediately.  P.S., one of the girls who had been with J.T. at the community center, testified that she had been at K.M.G.’s home with J.T. and heard what she thought were “sex noises” coming from the room where K.M.G. and J.T. were.

            The district court found that K.M.G. successfully established the defense of mistake of age to the first count of criminal sexual conduct but that K.M.G. committed criminal sexual conduct, as alleged in count two, by continuing to have sex with J.T. after he knew that she was only 14 years old. 

            At the disposition hearing, K.M.G.’s attorney argued for a stay of adjudication. K.M.G.’s attorney argued that K.M.G. is not a sexual predator, citing his lack of any history of aggressive behavior, and argued that his “limited intellectual ability made him closer in age to the victim.”  Specifically referring to defense counsel’s arguments, the district court stayed adjudication of delinquency for two 90-day periods with conditions, including the condition that K.M.G. complete sex-offender treatment.  K.M.G. was also ordered to pay restitution.

            K.M.G. failed to complete sex-offender treatment and failed to pay restitution as ordered within the 180-day stay of adjudication.  The district court revoked the stay and adjudicated K.M.G. delinquent, triggering the requirement that K.M.G. register as a sex offender.  Fifteen days after K.M.G. was adjudicated delinquent, his probation officer informed the district court that K.M.G. had completed treatment, paid restitution, and fulfilled the registration requirements, and the district court dismissed K.M.G. from probation.  This appeal followed.



I.          Sufficiency of evidence

This court will overturn a delinquency finding only if the trier of fact could not reasonably have found that the juvenile committed the acts with which he was charged.  In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn. App. 1985).  Our scope of review is limited to determining whether, given the facts and legitimate inferences, the factfinder could reasonably make the determination it did.  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).  We view the record in the light most favorable to the determination and assume that the district court believed the testimony supporting the determination and disbelieved any evidence to the contrary.  Id.  K.M.G. challenges the sufficiency of the evidence in two respects. 

K.M.G. argues that because the state’s witnesses were not credible, the evidence did not establish beyond a reasonable doubt that he had sexual intercourse with J.T. after the incident at the community center.  But it is the exclusive function of the district court to judge the credibility of witnesses, and this court must take the evidence found credible by the district court into account when reviewing the sufficiency of the evidence.  Id.  Although the district court was fully aware that T.J. and P.S. lied about the first encounter between J.T. and K.M.G. and gave inconsistent testimony about what occurred in the following months, it nonetheless concluded that J.T.’s testimony was credible because it was at least partially corroborated by the testimony of P.S. and K.M.G.’s mother.  The district court concluded that “[P.S.’s] testimony was credible because she had no reason to lie” and because “she testified that she was still friends with [K.M.G.] and did not want to get him in trouble.” 

K.M.G. also argues that the evidence was insufficient to establish beyond a reasonable doubt that he is more than 24 months older than J.T.  He does not dispute the chronological age difference, but argues that because he and J.T. are the same age “behaviorally and psychologically,” the statutory age difference does not exist in this case.  K.M.G. argues that the language of Minn. Stat. § 609.344, subd. 1(b) (2002), is ambiguous and can be interpreted to include emotional age, psychological age, or some measure other than chronological age, under the rule of lenity.[1]

Whether a statute has been properly construed is a question of law to be reviewed de novo on appeal.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  “The object of statutory interpretation is to determine and effectuate legislative intent.”  State v. Zeimet, 696 N.W.2d 791, 793 (Minn. 2005).  This court applies the plain meaning of clear and unambiguous statutory language.  State v. Soukup, 656 N.W.2d 424, 427 (Minn. App. 2003), review denied (Minn. April 29, 2003).  In choosing between possible definitions of a statutory term, courts must accept the interpretation which is more logical and practical.  Murphy, 545 N.W.2d at 916.

Minn. Stat. § 609.344, subd. 1(b), criminalizes sexual intercourse with a juvenile between the age of 13 and 16 who is more than 24 months younger than the person charged.  Appellant does not cite, nor is there any authority suggesting that “24 months” is ambiguous or refers to anything other than chronological age.  We conclude that the statute is not ambiguous and is not susceptible to an interpretation that would require the state to prove, beyond a reasonable doubt, that there is a 24-month difference between the the emotional, psychological, or behavioral age of a person charged under Minn. Stat.     § 609.344, subd. 1(b), and the juvenile victim.

Furthermore, as respondent notes, the district court did not disregard K.M.G.’s psychological age and intellectual capacity but appropriately factored that evidence into its disposition, stating:

[T]he Court also had information that [K.M.G.] in some respect had limited intellectual ability . . . that made him closer in kind of a psychological age to the victim. 


The other reason that I granted the initial stay of adjudication is because [K.M.G.] had no history of aggressive behavior.  And as I said, limited intellectual ability that made him closer in age to the victim. 


Because there is evidence in the record to support the district court’s finding that K.M.G. had sexual relations with J.T. after he learned her true age, and the district court properly interpreted the statute to refer to chronological age, K.M.G.’s argument that the evidence is insufficient to support his adjudication is without merit.

II.        Fifth Amendment rights of juvenile witnesses

            Next, K.M.G. argues that the district court erred by permitting J.T. and P.S. to testify without obtaining valid waivers of their Fifth Amendment privilege against self-incrimination.  Because K.M.G. has no standing to assert a violation of others’ Fifth Amendment rights, we need not consider this issue.  See Rogers v. U.S., 340 U.S. 367, 371, 71 S. Ct. 438, 440-41 (1951) (stating that the privilege against self-incrimination is purely personal to and solely for the benefit of the witness).  But we note that the record reflects that the district court obtained adequate waivers from both witnesses, and there is no merit to K.M.G.’s argument.  

III.       Revocation of stay of adjudication

            K.M.G. argues that the district court should not have revoked the stay of adjudication, failed to make adequate findings to support the revocation, and made a finding unsupported by the record that K.M.G. could not have completed treatment prior to expiration of the stay. 

District courts have broad discretion to order appropriate juvenile-delinquency dispositions, and this court affirms dispositions that are not arbitrary.  In re Welfare of N.T.K., 619 N.W.2d 209, 211 (Minn. App. 2000).  The district court may revoke a stay of adjudication based on clear and convincing evidence, or the child’s admission, of a violation of the dispositional order.  Minn. R. Juv. Delinq. P. 15.07, subd. 4(D). 

            Minn. R. Juv. Delinq. P. 15.05, subd. 4(B), does not permit a continuance without adjudication for more than two 90-day periods, and K.M.G.’s argument that he might have been able to complete treatment prior to the expiration of the stay is meritless because the stay had expired prior to the revocation hearing.[2]  At the revocation hearing, K.M.G. admitted that he did not complete treatment and that he failed to attend a review hearing that was scheduled to take place two weeks before the stay had expired.  K.M.G. and his mother asserted that K.M.G.’s depression caused him to miss treatment appointments.

            At the revocation hearing, the district court noted that it had given K.M.G. a chance to have the case dismissed without an adjudication but had stressed to K.M.G. that he must complete sex-offender treatment during the stay.  The district court found that “whatever depression he might have had,” K.M.G.’s violation of the terms of probation was knowing and intentional, and he did not give any good reason for his failure.  Because there is clear and convincing evidence that K.M.G. violated the terms of his probation by not completing sex-offender treatment, we conclude that the district court did not abuse its discretion by revoking K.M.G.’s stay of adjudication.[3]

IV.       Interests of justice

K.M.G. argues that this court should exercise its inherent supervisory power and reverse the delinquency adjudication in the interests of justice.  In the past, we have declined to exercise such power, deferring that exercise to the supreme court.  See State v. Gilmartin, 535 N.W.2d 650, 653 (Minn. App. 1995) (stating that “[a]s an intermediate appellate court, we decline to exercise supervisory powers reserved to this state’s supreme court”), review denied (Minn. Sept. 20, 1995).

In this case, K.M.G. and his mother are primarily concerned about the registration requirement that follows from K.M.G.’s adjudication.  K.M.G. and his mother were aware that if he was adjudicated, K.M.G would be required to register as a sex offender, a consequence that appears to be harsh in many cases involving consensual sexual activity among young people.  Cf. State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996) (affirming the district court’s inherent authority to stay adjudication over prosecutor’s objection when the district court felt that justice would not be served by giving Krotzer a criminal record as a predatory sex offender).  K.M.G. and his mother were also aware that the district court’s grant of a stay of adjudication was predicated in part on giving K.M.G. an opportunity to avoid this consequence.  The alacrity with which K.M.G. completed treatment and paid restitution after adjudication belies K.M.G.’s argument on appeal that depression prevented him from completing treatment in a timely manner.  Under all of the circumstances of this case, we conclude that there has not been such an injustice as to require exercise of any supervisory powers possessed by this court.


[1] The psychologist testified in general terms about a person with K.M.G.’s I.Q. and social skills, but there is no direct evidence in the record of K.M.G.’s emotional or psychological age.

[2] Stay of adjudication was granted on June 22, 2005, and expired on or about December 22, 2005.  The revocation hearing took place on January 6, 2006.

[3] K.M.G. also asserts that the district court erroneously revoked the stay of adjudication based on K.M.G.’s failure to pay restitution.  Although the district court found that K.M.G. had failed to pay restitution, the record demonstrates that revocation was based primarily on K.M.G.’s failure to complete treatment, which the district court stated is the primary issue for a sex offender.